Fair Use Held Hostage by ABC-Disney

14Feb09

My textbook, Television and American Culture, has hit the streets (or at least the postal system – order yours now!). I received my first copy yesterday, and am happy to say that it looks great. This is due not to my own work (I’m solely to blame for the content), but the excellent staff at Oxford University Press who made the design and editing process a pleasure, with great results as well.

One decision that my editor and I made early in the process was that the book’s internal illustrations would be frame-grabs from DVDs and over-the-air broadcasts, and that we would claim fair use for these images instead of seeking permissions. This is in keeping with a longstanding position articulated by the Society for Cinema and Media Studies back in 1993 (I’m a member of the SCMS Public Policy Committee and we are currently working to update this position statement for the digital age). As far as we know, the use of frame-grabs as fair use has never been challenged in court – if a publisher supports this right, they will not bend to pressure from copyright holders. And OUP has certainly been supportive of our fair use rights in this regard, encouraging me to use dozens of images (and using high-quality paper to make them look great).

The use of images becomes complicated regarding cover art. Fair use applies within books and articles, as the function of the illustrations is educational and critical, used to deepen and support analysis. Cover images can have that function, but they also help market the book. So the tradition is that publishers (or authors) license rights for images on book covers for a fee. The book’s cover design, which I love, features seven screens in need of content – the designer selected images that connect to examples discussed in the book, creating a wonderful visual collage of devices and programming. OUP’s staff set-out to license these images, after which the book went to press.

The problem emerged when ABC-Disney, who’d agreed to license the image of Lost in the center of the cover, asked what other ABC-Disney illustrations were in the book. OUP replied that the others were frame grabs under fair use provisions, and thus required no permissions. ABC-Disney then maneuvered into what my SCMS colleague and fair use guru Pat Aufderheide termed “a hostage situation”: they said that they would not agree to license the cover image unless we paid for the internal illustrations. The book was already at the printers, so nothing could be changed except at great cost. OUP paid the ransom for the internal images, and the book came out as designed.

To be clear, ABC-Disney did nothing illegal – they own the image of Lost, and we were required to pay for its use on the cover on their terms. The terms they stipulated had strings attached that, while morally wrong and based on a misreading of copyright law, are within their rights to demand. We paid for the internal images not because of copyright, but because ABC-Disney demanded it in exchange for the cover image. They made the decision to hijack fair use in exchange for a fee of less than $1,000, petty cash for a corporation like ABC-Disney. This was not the only option, as NBC-Universal had rights to the majority of cover images and licensed their use with no strings attached.

So what are the lessons to be learned here? Many media companies want to assert their copyright privileges beyond legal limits – not for petty cash, but for petty power. They aim to establish the precedent that they are in control, regardless of their legal standing. I’d guess the last thing ABC-Disney would want is to sue me or OUP over the frame grabs, as a loss in court would firmly establish the limits of their claims (and an unlikely win would yield little in revenue anyway). What they really want is bully power, the ability to make outsiders assume that rights holders also hold all the power. Unfortunately because the book was already in press, we had to yield – if we were able to, both my editor and I wanted to swap out the cover Lost image to avoid having to pay for the frame grabs that we had the right to use, thereby implying that fair use did not apply.

We do have some power here to push back. ABC got some of OUP’s money this time around, but I can say that no future editions of Television & American Culture will have ABC-Disney images on the cover. Instead we’ll use many ABC-Disney framegrabs without paying, via our fair use rights – and I encourage fellow scholars to follow suit. And I’ll use my own bully pulpits of this blog, my work with SCMS, and the tight-knit community of scholars interested in fair use to spread the word that ABC-Disney is willing to hold a non-profit academic press hostage over a tiny amount of money. Hopefully that kind of publicity offsets the pittance they received from us.

I was not aware that someone could use a series of screencaps and be able to claim them under Fair Use, but I definitely could see how that interpretation could come up.

I agree that it’s definitely sad that Disney chose to take a situation where someone was doing the right thing by getting permission to use cover art, and to demand some miniscule payment for inside images, which seem to have some standing or precedent as Fair Use.

They only hurt themselves with something like that, which you have stated they will already feel by not getting mentioned in future books. But I think that is a fair way to approach it, and believe it or not, actions like that can sometimes get attention.